Legal Semantics: Changing definitions of ’employer’ and ’employment’
The Department of Labor’s Wage and Hour Division (WHD), the National Labor Relations Board, and OSHA have their eyes on a shared goal – “to hit a trifecta against independent contractors, franchisers, parent companies and similar entities”. Their strategy involves altering (or rather expanding) the definitions of ’employer’ and ’employment’. Michael Billok of Bond Schoeneck & King, wrote an article recently exploring this collaborative action.
Wage and Hour Division – Prior to 2014 when David Weil became the new administrator of the WHD, the classic test for a worker being an independent contractor was about control. Does the employer control when and how the work is produced? Weil’s new interpretation, however, is focused on if the worker is economically dependent on the company.
National Labor Relations Board – In August the NLRB issued a controversial employment decision. In the Browning-Ferris case, it found that a joint employer may be a staffing agency, franchisor or contractor if that party makes decisions affecting a worker’s employment, even if that right is not exercised.
OSHA – Franchisors suspect that OSHA intends to treat them as employers based on reports that OSHA investigators are “seeking information and documents during inspections to tie franchisors into those inspections in order to cite them as employers along with franchisees.”
